“Same-Sex Adoptions — In The Best Interest of The Child or

A Desperate Attempt to Provide Homes to Those Without Families?”

Same sex adoptions, “also called alternative family adoptions” have become a major issue for the courts in today’s society. What should be in the best interest of the child may not be when faced with increasing court battles and family law issues resulting from these types of adoptions in an effort to widen the adoption pool for unwanted children.

The primary goal of an adoption agency is to place children in stable, permanent homes. Yet, today there remains thousands all over the country without permanent residency. In order to decrease these numbers, agencies have chosen to open their doors to a new concept — the “alternative family,” opposed to the “traditional family,” as a means of solving this dilemma.

Agencies not only have the responsibility of choosing suitable applicants, but also frequently ward off the prejudices against the alternative family concept. Namely, whether agencies are considering the best interest of the child when allowing these adoptions. The political and legal backlashes the alternative family faces, and finally, the court’s view of the alternative family in relation to the child’s best interest.

As the agencies struggle with this new concept, bearing in mind society is not completely comfortable with the idea, they find themselves having to fight the social and emotional battle of deciding whether it’s right or wrong to allow adoptions by same-sex parents. And as a result, confronted with several conflicts when making final determinations, justifying their decisions by deference or adherence to the guidelines set by agencies or the bias of personal conviction influenced by society, psychology, religion, or case law.

These issues have proven to be complex and difficult to resolve, paving the way for an influx of cases trampling down the doors of our courtrooms, boring the pathway for new laws.

Are Agencies Considering the Best Interest of the Child

When Allowing Same-sex Adoptions?

In order to determine whether or not these adoptions are in the best interest of the child, it is necessary to address the concern of those who oppose the concept. The most obvious argument is: the child will be psychologically affected with regard to sexual orientation and/or gender. One can find a plethora of different reports from psychologists and psychiatrists who have confirmed there are no disadvantages to same-sex adoptions. One report in particular was written by Dr. Ellen Perrin of the American Academy of Pediatrics who studied adoption by same-sex parents. She states the following: “… The task was to determine if there is a disadvantage conferred upon a child who is being raised by two men or two women, in comparison to the same child being raised by a man and woman. Perrin stated: "We felt that the data were very conclusive that the answer to that question is 'no.' FN1

The Child Welfare League of America has as, “Their Standards of Excellence for Adoption Services states:

"Applicants should be assessed on the basis of their abilities to successfully parent a child needing family membership and not on their race, ethnicity or culture, income, age, marital status, religion, appearance, differing lifestyles, or sexual orientation. Further, applicants for adoption should be accepted on the basis of an individual assessment of their capacity to understand and meet the needs of a particular available child at the point of adoption and in the future." FN2

As supported by Dr. Perrin’s research, whether or not the applicants are of the same sex should be a moot point. Since the evidence is weak and inconclusive that same-sex couples couldn’t provide a loving home with discipline, instruction, and nurturing, the same as the traditional family, the agencies goal should then be to provide these children with stable homes and environments. Doing so is in the best interest of the child, providing as many opportunities as possible for adoption, even in a same-sex family, rather than shuffling them through the foster care system or residing in a group homes until they are of age and then turned out onto the street to somehow make it on their own, ill prepared to face the world.

The truth of the matter is: children are susceptible to bad environments where parents exercise poor parenting skills, impart no love, discipline, or nurture to the child, having nothing at all to do with whether the child is adopted by same-sex couples or adopted by heterosexual couples.

Political and Legal Backlashes

The alternative family has caused widespread dissention and confusion across the country. This dissonance in society is the reason for the persistence amongst the gay and lesbian community to protect their right to be parents. They have, with much resolve, decided to defend their right to a family as well as put aside the theory amongst the heterosexual community that gays and lesbians couldn’t possibly make good parents to adopted children because of their sexual preference.

In defending their right to be parents, same-sex couples have overcome much adversity. “The last decade has seen a sharp rise in the number of lesbians and gay men forming their own families through adoption, foster care, artificial insemination and other means. Researchers estimate that the total number of children nationwide living with at least one gay parent ranges from six to 14 million. (ACLU Fact Sheet, 1999). FN3 Yet, even with these great strides in the gay community, there still seems to be issues trying the validity of the alternative family. The main issue remaining under scrutiny by religious leaders, politicians, and legal officials alike is: marriage, the bond and the sanctity of matrimony. Politically and legally, this issue has caused great disparity throughout mainstream society.

“Three states - Florida, Mississippi, and Utah - have laws that explicitly prohibit homosexual individuals and/or couples from adopting children. Michigan has, by construction of its statutes, prohibited same-sex couples from adopting, but does not prohibit single homosexual individuals from adopting. Other states may not have explicit prohibitions against same-sex adoption, but may have statutory requirements that only married couples may adopt, and thus, by extension, same-sex couples (because they are not married) are prohibiting from adopting. Listed below is the Florida statute, the first enacted statute, which explicitly prohibits same-sex adoptions and the statutes from Utah and Michigan:

Florida Statute § 63.042:

Who may be adopted, who may adopt:

(1) Any person, a minor or an adult, may be adopted.

(2) The following persons may adopt:

(a) A husband and wife jointly;

(b) An unmarried adult, including the birth parent of the person to be adopted;

(c) The unmarried minor birth parent of the person to be adopted; or

(d) A married person without the other spouse joining as a petitioner, if the person to be adopted is not his or her spouse, and if:

(1) The other spouse is a parent of the person to be adopted and consents to the adoption; or

(2) The failure of the other spouse to join in the petition or to consent to the adoption is excused by the court for reason of prolonged unexplained absence, unavailability, incapacity, or circumstances constituting an unreasonable withholding of consent.

(3) No person eligible to adopt under this statute may adopt if that person is a homosexual.

(4) No person eligible under this section shall be prohibited from adopting solely because such person possesses a physical disability or handicap, unless it is determined by the department or the licensed child-placing agency that such disability or handicap renders such person incapable of serving as an effective parent.

Note: Florida adoption law does not prohibit gays or lesbians from serving as foster parents, but it does prevent such parents from adopting their foster children.” FN5

Mississippi Statute § 93-17-3(2)

Eligible persons; venue; certificate; name

(2) Adoption by couples of the same gender is prohibited.

Utah Statute § 78-30-9

Decree of adoption – Best interest of child.

(1) The court shall examine each person appearing before it in accordance with this chapter, separately, and, if satisfied that the interests of the child will be promoted by the adoption, it shall enter a final decree of adoption declaring that the child is adopted by the adoptive parent or parents and shall be regarded and treated in all respects as the child of the adoptive parent or parents.

(2) The court shall make a specific finding regarding the best interest of the child, taking into consideration information provided to the court pursuant to the requirements of this chapter relating to the health, safety, and welfare of the child and the moral climate of the potential adoptive placement.

(3) (a) The Legislature specifically finds that it is not in a child’s best interest to be adopted by a person or persons who are cohabiting in a relationship that is not a legally valid and binding marriage under the laws of this state. Nothing in this section limits or prohibits the court's placement of a child with a single adult who is not cohabiting as defined in Subsection (3)(b).

(b) For purposes of this section, “cohabiting,” means residing with another person and being involved in a sexual relationship with that person. “

Again, while most states do not prohibit same-sex adoptions, the statues, as seen in the examples above, make it very difficult to adopt, and in reality, are far from recognizing the alternative family. To date, there are only ten states, which permit same-sex adoptions, the state of California being one of them.

The Court’s View of the Alternative Family in Relation

to the Best Interest of the Child

What does the court mean by “in the best interest of the child?” We repeatedly hear this phraseology when speaking on the topic of family law matters.

In the best interest of the child is the test the court uses in determining its rulings for or against adoptions, custody issues, and financial obligations on the part of the parents and many other family law related issues. The California statute states the following:

“Cal. Welf. & Inst. Code § 16000 (LexisNexis through 2005 Ch. 32) It is the intent of the Legislature to preserve and strengthen a child's family ties whenever possible, removing the child from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public. If a child is removed from the physical custody of his or her parents, preferential consideration shall be given whenever possible to the placement of the child with the relative as required by law. If the child is removed from his or her own family, it is the purpose of this chapter to secure as nearly as possible for the child the custody, care, and discipline equivalent to that which should have been given to the child by his or her parents. It is further the intent of the Legislature to reaffirm its commitment to children who are in out-of-home placement to live in the least restrictive, most family-like setting and to live as close to the child's family as possible…. Family reunification services shall be provided for expeditious reunification of the child with his or her family, as required by law. If reunification is not possible or likely, a permanent alternative shall be developed.

It is further the intent of the Legislature to ensure that all pupils in foster care and those who are homeless as defined by the Federal McKinney-Vento Homeless Assistance Act have the opportunity to meet the challenging State pupil academic achievement standards to which all pupils are held. In fulfilling their responsibilities to pupils in foster care, educators, county placing agencies, care providers, advocates, and the juvenile courts shall work together to maintain stable school placements and to ensure that each pupil is placed in the least restrictive educational programs, and has access to the academic resources, services, and extracurricular and enrichment activities that are available to all pupils. In all instances, educational and school placement decisions must be based on the best interests of the child.” FN6

There are many cases on the books that do not support adoption by same-sex couples. Following are excerpts from established rulings, which offer insight into the mind of the court in recent years.

“(Roe v.Roe, 1985) . “In that case, the court found that living with a lesbian or gay parent placed “an intolerable burden on a child.” Bottoms v Bottoms, 249 Va. 410; 457 S.E.2d 102; 1995 Va. (Sullivan, (1999). FN7

“…Judge Joseph Tarbuck granted custody of an 11-year-old girl to her father, John Ward, a man who murdered his first wife, apparently in the midst of a bitter custody dispute. …Judge Tarbuck declared that it was important to give the girl a chance to live in a ‘non-lesbian world.’ 742 So. 2d 250; 1996 Fla. App.” (Sullivan, 1999). FN8

A more recent case reported in the Fort Wayne’s News Sentinel, reports a current case which, “involves lesbian partners in Morgan County, who had lived together more than 10 years. The local adoption agency, having concluded that it would be in the child’s best interests, encouraged the couple to seek adoption of an infant girl for whom they were acting as foster parents. They initiated the proceedings in Marion County because the Morgan County judge who would have had jurisdiction had a well-known predilection for ruling against same-sex adoptions. Marion County granted the adoption, but the Morgan County judge attempted to overturn it. The appeals court ruled that there is nothing in Indiana code prohibiting same-sex adoptions.” FN9

The courts started with Lofton v. Kearney, 157 F. Supp. 2d 1372; 2001 U.S. Dist., a case at the Eleventh Circuit Court of Appeals which stated, “Homosexuals are not similar in all relevant aspects to other nonmarried adults with respect to Defendants' purported best interest of the child. Nonmarried adults, unlike homosexuals, can get married. On the other hand, homosexuals cannot marry or be recognized as a marital unit and, thus, cannot meet this State's asserted interest underlying the homosexual adoption provision.” FN10 However, if the courts recognize the change of the family, as Judge Kevin Chang’s did, the focus of the court on the interest of the child’s best interest would be modified.

"There certainly is a benefit to children which comes from being raised by their mother and father in an intact and relatively stress-free home. However, there is a diversity in the structure and configuration of families...In Hawaii, and elsewhere, children are being raised by their natural parents, single parents, step-parents, grandparents, adopted parents, hanai adoptive parents, foster parents, gay and lesbian parents, and same-sex couples...There are also families in Hawaii, and elsewhere, which do not have children...The evidence presented by the plaintiffs and defendant establishes that the single most important factor in the development of a happy, healthy and well-adjusted child is the nurturing relationship between parent and child." FN11

Conclusion

Society has assigned the great task of same-sex adoptions to that of the court, but the legislature seems to be nexus for the resolution of this most conflicting issue. While the courts attempt to solve the legal issues presented, the problem is far from being solved, since the issue it is not only a legal one, but a moral one as well.

While society continues to iron out the wrinkles, agencies should not, out of desperation, place these children just anywhere, the best interest of the child without exception should always prevail.

Footnotes

2 Ibid.

3 Overview of the Lesbian and Gay Parenting, Adoption and

Foster Care: www.aclu.org/lgbt/parenting/11824res19990406.html

4 Same Sex Parenting, www.religioustolerance.org/hom_parez.htm

5 Liberty Counsel, www.lc.org: www.lc.org\ProFamily-samesex_adoption_by_state.pdf

6 U.S. Department of Health & Human Services, Administration for Children & Families, http://nccanch.acf.hhs.gov/general/legal/statutes/search/: Determining the Best Interests of the Child: Summary of State Laws. (PDF 515 KB)

7 Sullivan, R. (1999). Queer Families, Common Agendas: Gay People, Lesbians, and Family Values. New York: The Haworth Press, Inc. — Author is the Associate Professor in the School of Social Work and Family Studies at the University of British Columbia, Pg. 3

8 Ibid.

9 The News Sentinel, www.fortwayne.com/mld/newssentinel/news/editorial/14583798.htm

10U.S. Department of Health & Human Services, Administration for Children & Families, http://nccanch.acf.hhs.gov/general/legal/statutes/search/: Determining the Best Interests of the Child: Summary of State Laws. (PDF 515 KB)

11Sullivan, R. (1999). Queer Families, Common Agendas: Gay People, Lesbians, and Family Values. New York: The Haworth Press, Inc. — Author is the Associate Professor in the School of Social Work and Family Studies at the University of British Columbia, Pg. 3